Myers v. State

ON CRIMINAL PETITION FOR TRANSFER DICKSON, Justice.

The State has petitioned for transfer, arguing that the Memorandum Decision of the Court of Appeals, 525 N.E.2d 1295 , is inconsistent with the following language from our decision in Greene v. State (1987), Ind., 515 N.E.2d 1376, 1882 ;

The trial court gave most of the tendered instruction as final instruction No. 19 but excluded the last portion. The later part of Greene's instruction is an incorrect statement of the law. Mills v. State (1987), Ind., 512 N.E.2d 846 (cireumstan-tial evidence need not exclude every reasonable hypothesis of innocence).

Prior to Greene, Indiana cases had observed the distinction between the law which governs trial courts and that which governs appellate courts regarding convictions based solely on circumstantial evidence. While exclusion of every reasonable hypothesis of innocence is not the proper appellate standard of review in sufficiency matters, it is the correct standard at trial and a defendant is entitled to an instruction accordingly. Spears v. State (1980), 272 Ind. 634 , 401 N.E.2d 331 , modified on other grounds 272 Ind. 647 , 408 N.E.2d 828 . See also Sanders v. State (1988), Ind., 524 N.E.2d 794 .

This important distinction was properly recognized by the Court of Appeals below in its decision to affirm the theft conviction but to reverse and remand for a new trial on the burglary charge, the evidence in support of which was entirely cireumstan-tial.

To the extent that inadvertent language in Greene may be viewed otherwise, it is hereby overruled.

The State's petition to transfer is denied.

SHEPARD, C.J., and DeBRULER, GIVAN and PIVARNIK, JJ., concur.